Caveats – Probate and Property

We are regularly asked by people to file a caveat to protect their interest or rights in contested wills cases (family provision cases). There are two types of caveats, as follows:

Property caveat

A property caveat is designed to prevent dealing with a property in dispute. Family provision claimants do not have a right to place such a caveat on any estate property… unless in some truly exceptional circumstance. If a caveat is place on the title improperly the court in due course will order legal costs to be paid.

Probate caveat

This caveat is filed in court to prevent probate being granted of a Will. In family provision cases all parties actually want probate to be granted so to file a probate caveat would delay proceedings and possibly result in a legal costs order against the lodging party.

1. When contesting a will, what is a caveat on property?

A caveat is a document filed at the Land Titles Office (also known as the Land and Property Information Office) which has the effect of stopping any transaction to do with that property. In 99% of contesting wills cases, these caveats are not permitted.

2. Who has the right, in contested wills cases, to file a property caveat?

Only a person or entity who has a legal interest in the particular property.

3. What is an example of a legal interest in property sufficient to give you the right to file a caveat in a contested wills case?

  1. You might have a loan outstanding in relation to the property.
  2. You may have some sort of agreement with the owner of the property that the property will not be sold or mortgaged without your approval.
  3. The property owner may have agreed to you filing a caveat to protect your interest in the property.

4. What are some examples of insufficient interest in contested wills cases to lodge a caveat?

Having a family provision entitlement in a deceased estate/will is not having an interest in the deceased property. You cannot lodge a caveat in those circumstances.

5. What can you do to protect estate property being sold and dissipated before you get a chance to win your family provision claim?

If you cannot get the executor of the estate to undertake not to distribute the estate, you can ask the court to make an order for the proceeds of sale to be frozen until the finalisation of your family provision claim.

6. Can a family provision applicant stop the executor from selling estate property?

In most cases, you cannot stop the executor from administering the estate. However, you can stop the executor from distributing the estate.

7. When contesting a will, can you stop the executor from distributing all of the estate?

Sometimes. Unless there are special circumstances, the executor is required to keep enough money or property in the estate to satisfy any family provision claim.

8. What is a caveat on probate?

A caveat on probate is a caveat filed in the probate court to stop probate being granted.

9. What is probate?

Probate means proof of the will. Once the will has been proven to the satisfaction of the court staff or a judge (in complicated matters) probate is granted to the executor or substitute executor. Probate authorises the executor to administer the estate by selling assets and collecting funds to distribute the estate in accordance with the will.

10. How does the caveat work when challenging a will?

A grant of probate in common form means there was no challenge to the will, there are no suspicious circumstances and it has been declared valid by the court.

A grant of probate in solemn form means the document has been challenged and the court has carefully looked at it and declared it valid in the form of an order.

If you want to challenge the validity of a will, generally it is done prior to a grant of probate. The person who wants to challenge probate is not an executor or administrator, so in order to ensure the court is aware there is a challenger to the proceedings, you lodge a caveat. A caveat ensures you are notified (by the executor or the administrator of the estate) before the court will consider a grant.

Under section 145 of the Probate and Administration Act 1898 (NSW), where a caveat is lodged, the applicant for probate or letters of administration may only proceed provided they have given notice to the caveator of their intention to do so.

A caveat remains in force for six months, unless the court orders otherwise (section 63 of the Probate and Administration Act 1898 (NSW)).

11. Who has the right (the standing) to apply for a probate caveat when challenging a will in NSW?

In accordance with NSW Supreme Court Rules(rules 61-62A), a caveat can be lodged by a person ‘who has an interest in the estate’ or who is an ‘affected person in relation to the estate’.

This means you must be able to show that, should probate be granted or letters of administration be granted, the result would be that any foreseeable outcome would have a material effect on the applicant.

If the evidence does not show you have a material interest in the outcome of any court proceedings relating to the estate, the court can remove the caveat and grant probate or letters of administration without considering further evidence.

12. When does a probate caveat cease to operate?

  1. Time runs out on the caveat (six months) (rule 63 of the NSW Supreme Court Rules);
  2. It is withdrawn by the caveator (rules 64-65 of the NSW Supreme Court Rules);
  3. Proceedings have been commenced and the caveator is a defendant in the matter (rule 69 of the NSW Supreme Court Rules).

Where in respect of the caveat, the caveator cannot show:

  1. He or she has an interest in the estate or a reasonable prospect of establishing an interest (rule 69(4) of the NSW Supreme Court Rules);
  2. Any doubt in relation to whether the grant ought to be made (rule 69(4) of the NSW Supreme Court Rules);
  3. Where the court has ordered the caveator to commence proceedings within a certain time limit and that time limit has expired (rule 69(8) of the NSW Supreme Court Rules).

13. When challenging a will in QLD, who has standing to apply for a probate caveat?

To apply for a caveat under the Uniform Civil Procedure Rules(QLD) Part 7, you must show the court you have an ‘interest in an estate’ that the caveat is filed against.

As part of the application for a caveat, the caveator must file a ‘notice to support the caveat’ showing said interest.

An ‘interest’ must be:

  1. An interest of the caveator, not another party; and
  2. A reasonable prospect of establishing a right to an interest in any property that forms part of the estate.

14. What are three types of probate caveats in NSW?

General Form of Caveat (Form 114, NSW Supreme Court Rules, Part 78, rule 61) which allows the caveator to challenge the will on the basis of:

  1. Lack of testamentary capacity;
  2. Undue influence;
  3. Fraud; and
  4. Lack of testamentary intention.

To apply for this caveat you must show you have an ‘interest in the estate’. If the evidence does not show you have a material interest in the outcome of any court proceedings relating to the estate, the court can remove the caveat and grant probate or letters of administration without considering further evidence. Caveat for Solemn Form (Form 114; NSW Supreme Court Rules, Part 78, rule 62) allows the caveator to challenge the will on the basis of:

  1. Failure to execute the document in accordance with the requirements of the Succession Act2006 (NSW), Chapter 2.

This requires the court to look closely at the validity of the document before declaring it a valid will. To apply for this caveat you must show you have an ‘interest in the estate’. Caveat in respect of Informal Testamentary Document (Form 114, NSW Supreme Court Rules, Part 78, rule 62A) allows a caveator to challenge a grant of probate being given on an informal testamentary document on the basis it is invalid. To apply for this caveat you must show you are an ‘affected person in relation to the estate’.

15. When challenging a will in QLD, how can a probate caveat be removed?

There are several ways a caveat can be removed. The caveator may withdraw the caveat (Uniform Civil Procedure Rules(QLD) , rule 627). A caveat will be set aside if the court finds the caveator does not:

  1. Have an interest in the estate or reasonable prospects of establishing an interest in the estate; or
  2. Raise any doubts as to why the grant should not be made (Uniform Civil Procedure Rules (QLD), rule 626).

16. When challenging a will in VIC, when does a probate caveat cease to operate?

In accordance with the Supreme Court (Administration and Probate) Rules(VIC), Order 8A, a caveat ceases to operate:

  1. Six months after its commencement, unless the court directs otherwise;
  2. 30 days after the caveator receives notice from the registrar of the court, and the caveator does not file a statement giving grounds for the objection; or
  3. If a judge of the court orders otherwise.

17. In VIC, who has the standing to apply for a probate caveat on a will?

While the Administration and Probate Act 1898 (VIC), section 58 states ‘any person’ has standing to apply for a caveat against an estate, the court does not like people to waste their time with frivolous claims. Therefore, an applicant should possess evidence to support a prima facie case in their favour.

18. When challenging a will, how do you apply for a probate caveat in QLD?

You can apply for a caveat in QLD in three forms (similar to NSW). In accordance with the Uniform Civil Procedure Rules, rule 624, the caveat may be:

  1. A caveat against a grant for the estate; or
  2. A caveat requiring any application for a grant to be referred to the court as constituted by a judge; or
  3. A caveat requiring proof in solemn form of any will of the deceased.

Application is made on Form 116 of the Uniform Civil Procedure Rules Forms.

19. When challenging a will In VIC, how do you apply for a probate caveat?

Under section 58 of the Administration and Probate Act 1958 (VIC), any person can lodge a caveat in accordance with the Supreme Court (Probate and Administration) Rules2004 (VIC).

A caveat can be applied for on Form 38A, Supreme Court (Administration and Probate) Rules2004 (VIC), Order 8.

While any person may lodge a caveat, it is a costly procedure unless you have the evidence to prove a prima facie case in your favour.

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